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Judging in a Vacuum, or, Once More, Without Feeling: How Justice Scalia’s Jurisprudential Approach Repeats Errors Made in Plessy v. Ferguson

Justice Antonin Scalia recently declared that the 14th Amendment’s Equal Protection Clause simply does not apply to discrimination based on sex or sexual orientation. Though Justice Scalia’s statement is not exactly news, as he had previously suggested as much in dissenting opinions in Romer v. Evans and United States v. Virginia, it does provide an opportunity to consider how he arrived at these conclusions. Justice Scalia argues that he is simply applying the original meaning of the Equal Protection Clause, deferring to tradition and the will of the people until and unless democratic action provides new instructions. This article argues that Justice Scalia’s conclusions can be understood in a different way. Scalia’s dissenting opinions in cases involving sex and sexual orientation discrimination under the Equal Protection Clause, as well as in cases involving the Establishment Clause, represent a failure to learn and apply the fundamental lessons of Plessy v. Ferguson and Brown v. Board of Education. As this article will discuss in Parts I-III, Brown can be seen as a triumph of empathy with Plessy, by contrast, an example of judicial decisionmaking in a vacuum, cut off from vital social and historical context. When Justice Scalia disdains empathy and ignores context, as he does in his dissenting opinions in Romer, U.S. v. Virginia, Lee v. Weisman, and Edwards v. Aguillard, discussed in Part IV, he ends up following Plessy’s reasoning, not Brown’s, writing opinions in a judicial vacuum that fail to take reality into account.

Others have written about empathy and social context as tools for judging, and others have suggested that Justice Scalia is following Plessy’s approach in specific opinions. This article does something new by connecting these ideas to argue that (a) Brown corrected Plessy’s errors by relying on social and historical context and by engaging in empathy; and (b) judges who fail to recognize that this is the crucial distinction between Plessy and Brown run the risk of repeating Plessy’s errors, though surely unintentionally, in different areas of the law, as Justice Scalia does in the Equal Protection and Establishment Clause cases I discuss in Part IV. My conclusion is that, if we want justices who will truly follow Brown, not Plessy, future Senate confirmation hearings must seek to discover whether nominees understand the crucial distinctions in reasoning between Brown and Plessy. Justices who narrowly reject only Plessy’s holding will be more likely to repeat its substantive errors and will fail to do justice, as the Court failed in Plessy itself.